THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 485 of 2024

Present: Naimatullah Phulpoto, J

Irshad Ali Shah, J

Appellant : Kamran Shah though Mr. Allah Bakhsh Narejo advocate

Respondent : The State through Mr. Saleem Buriro Additional Prosecutor General Sindh

Date of Hearing : 05.09.2024

Date of judgment : 05.09.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Kamran Shah has filed instant appeal under Section 410 Cr.P.C read with Section 48 of the CNS Act 1997 against the judgment dated 01.07.2024 passed by learned Special Judge, CNS Karachi South (hereinafter referred to as trial Court) in S.C.No.2951/2022 (FIR No. 154/2022 for offence punishable under Section 9(b) of CNS Act 1997 registered at PS Tipu Sultan, Karachi).

2. By way of the impugned judgment, appellant has been convicted by trial court for commission of offence punishable under Section 9(b) of CNS Act 1997 and sentenced to undergo rigorous imprisonment for 01 year and 03 months with fine of Rs.9000/- and in case of failure of payment of fine, he was directed to undergo simple imprisonment for 03 months and 15 days. Appellant was extended benefit of Section 382-B Cr.P.C.

3. Brief facts leading to the filing of the present appeal before this Court as emerged from the record are as under.

4. On 01.06.2022, SIP Sahib Khan of PS Tipu Sultan along with his subordinate staff left police station for patrolling. During patrolling, at 2230 hours, when said police party reached at Railway track inside Balouch Bridge, a person seeing it tried to run away, he was found in suspicious manner and was caught hold. On enquiry, he disclosed his name as Kamran son of Sabir Shah, from his person search, a plastic shopper containing pieces of charas was recovered. On weighment, those were found to be 250 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs PCs Sadam Akbar and Owais Saleem. The contraband, so recovered was sealed. Accused and case property were brought to the police station. FIR against accused was lodged on behalf of state vide Crime No. 154/2022 for offence punishable under Section 9(b) of CNS Act 1997 registered at PS Tipu Sultan, Karachi. Charas was sent to the Chemical Examiner. Other codal formalities were completed. After completion of investigation and after securing positive report of Chemical Examiner, police filed challan against the accused before trial Court.

5. The charge framed by learned trial Court was put to the accused, he did not admit his guilt and claimed to be tried.

6. Since accused had not pleaded guilty, as such prosecution was directed to adduce its evidence. In order to prove charge framed against the accused, prosecution has examined as many as 04 witnesses, who produced relevant documents.

7. After closure of the evidence of prosecution, entire incriminating evidence appearing against the accused was put to him in his statement recorded under Section 342 Cr.P.C. Accused denied prosecution’s case and took the defence of false implication at the behest of Head Mohrar Shahzad of PS Tipu Sultan, claiming enmity with him. However, accused neither opted to examine himself on oath nor led any evidence in his defence.

8. After closure of evidence and after hearing learned counsel for the parties, learned trial Court has convicted the accused for commission of offence punishable under Section 9(b) of CNS Act 1997 and sentenced him as referred above.

9. Learned counsel for the appellant argued that evidence of police officials is not confidence inspiring; that there are material contradictions in the evidence of the prosecution witnesses and that prosecution has failed to prove safe custody and safe transmission of the Charas to the Chemical Examiner before the trial Court. Reliance is placed upon the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004).

10. Per Contra, learned Addl. P.G has supported the judgment of conviction and sentence on the ground that no finger can be raised on the judgment on the ground that P.Ws are the police officials in this case. APG heavily relied upon the testimonies of police officials and positive report of chemical examiner and prayed that evidence of police officials is confidence inspiring. As such, prayer has been made to dismiss the appeal.

11. In order to decide the present appeal, it would be just and proper for this Court to re-examine the evidence of the official witnesses, led by the prosecution in order to prove the charge.

12. After re-examination of the entire prosecution evidence produced before the trial Court, we have come to the conclusion that prosecution has failed to prove it’s case against the appellant for the reasons that there are material contradictions in the evidence of the prosecution witnesses. It is the prosecution case that place of recovery was thickly populated area but SIP Sahib Khan, the head of police party failed to make any effort to associate any independent person as a mashir of recovery and arrest. According to prosecution evidence on 01.06.2022, SIP Sahib Khan of PS Tipu Sultan along with his subordinate staff left police station for patrolling. During patrolling, at 2230 hours, when police party reached at Railway track inside Balouch Bridge, a person (appellant) on seeking police party tried to run away. P.W-01 along with other police officials nabbed the appellant and recovered 250 grams of charas from him, it was taken into possession, mahsirnama of arrest and recovery was prepared, case property was sealed and accused was brought to police station, neither spot was photographed nor video was graphed. Appellant was unrepresented, however, learned trial Judge put up some questions to P.Ws/police officers. In the cross examination P.W-01 SIP Sahib Khan has replied that mashirnama of arrest and recovery was prepared on torch light flashed by DPC Owais, neither torch was produced nor DPC Owais was examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that he might not going to support the case of prosecution. P.W-03 PC Sadam Akbar belied the complainant, by stating that in his cross-examination that SIP prepared memo of arrest and recovery on the bonnet of mobile vehicle under the lights of the houses situated at place of incident. It is case of the prosecution that alleged recovered charas was in pieces but number of pieces allegedly recovered was not mentioned in the mashirnama of arrest and recovery. PW-01 SIP Sahib Khan in his evidence no where deposed that to whom he handed over the alleged recovered charas. However, P.W-04 Head Mohrar ASI Muhammad Nadeem in his evidence has deposed that ASI Sahib Khan handed over him case property and he kept such entry in Register No. XIX whereas perusal of entry transpires that one SI Mehboob Ali entered in the Register and not PW-04 Head Mohrar ASI Muhammad Nadeem. Head Mohrar in his cross-examination has given evasive replies with regard to receiving and handing over case property. Prosecution has utterly failed to establish safe custody and safe transmission of the sealed parcel to the chemical examiner before trial Court. Moreover, the Trial Court had also failed to perform its duty by not putting some material questions to the prosecution witnesses in order to ascertain the truth. It appears that the Trial Court conducted the trial in a very casual manner.

13. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples makes the report of the Chemical Examiner fail to justify conviction of the accused but in the present case safe custody and safe transmission could not be established as stated above. Thus, conviction recorded by trial Court is not sustainable under the law as held in the case of Zahir Shah alias Shat vs. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004). Relevant portion is reproduced as under:

“………This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction……..”

14. Admittedly, defence version has not been considered by the trial Court. Overall, putting two versions in juxtaposition allows that more comprehensive examination and can be powerful tool for the courts to makes their observation more effectively. Unfortunately it was not done by the trial Court.

15. In view of the discussion made above, this Court is of the view that the learned trial Court has fallen into error by relying upon the evidence of police officials, which do not inspire confidence and no ring of truth has been found in those statements, by this Court, in judicial re-examination. Moreover, the case of the prosecution is shrouded under the cloud of mystery as detailed above. It is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the case reported as Tajamal Hussain v. the State (2022 SCMR 1567).

16. Consequently, instant Criminal Appeal is allowed, conviction and sentence recorded by learned Special Judge CNS Karachi South vide judgment dated 01.07.2024 are set aside. Appellant Kamran Shah son of Sabir Shah is acquitted of the charges in S.C.No.2951 of 2022 (FIR No.154/2022 for offence punishable under Section 9(b) of CNS Act 1997 registered at P.S Tipu Sultan, Karachi). Appellant be released forthwith, if not required in some other custody case.

17. These are the reasons for the short order announced on 05.09.2024.

JUDGE

JUDGE

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